Notre Dame Journal of Law, Ethics & Public Policy
Volume 18
Issue 2 Symposium on Criminal Punishment
Article 18
February 2014
How Can the United States Rectify Its Post-9/11
Stance on Noncitizens' Rights
Quinn H. Vandenberg
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Recommended Citation
Quinn H. Vandenberg, How Can the United States Rectify Its Post-9/11 Stance on Noncitizens' Rights, 18 Notre Dame J.L. Ethics &
Pub. Pol'y 605 (2004).
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HOW CAN THE UNITED STATES RECTIFY ITS POST9/11 STANCE ON NONCITIZENS' RIGHTS?
QUINN
H.
VANDENBERG*
INTRODUCTION
Changes in immigration law following Congress' 1996 legislation and post-September 11, 2001 legislation created an inhospitable and discriminatory environment for noncitizens.
Pursuant to Congress' 1996 and post-9 /ll legislation, increases
in the scope of crime-related deportation grounds' and lack of
judicial review result in a system where violations of individual
rights are not only possible but guaranteed.2 Rights violations
will likely occur whenever entry-level bureaucrats in the criminal
system as well as the immigration system possess virtually unrestrained control in deciding the effect that possible criminal or
terrorist-related activity will have upon a noncitizen's immigration status in the United States. The primary guiding principle
for immigration officers and entry-level bureaucrats is the current Immigration and Nationality Act (INA),' which defines the
* Juris Doctorate Candidate 2004 at the University of Notre Dame Law
School. I would like to thank Professor Barbara Szweda and Father John Pearson for their help and advice in writing this Note. I am grateful to the staff of
the Notre Dame Journal of Law, Ethics & Public Policy for their support, as
well. Special thanks to my family and friends for their continuous and complete support through the writing process.
1. See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (changing classification of immigration proceedings from "deportation" or "exclusion" to "removal"); see also The
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996). See generally Immigration and
Nationality Technical Corrections Act (INTCA) of 1994, Pub. L. No. 103-416,
108 Stat. 4305 (1994); and Violent Crime and Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994); Immigration Act
(IMMACT) of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990).
2. Despite the softening of sentiment toward immigrants during the later
1990s, the 1996 restrictions and September 11, 2001 removed the great majority
of immigrant-friendly legislation from Congress' agenda. Conversely, Congress
passed the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L.
No. 107-56, 115 Stat. 272 (2001). See discussion infra Section III-V.
3. The Immigration and Nationality Act (INA), 82 Pub. L. No. 414, 66
Stat. 163 (1952), was enacted in 1952. Amended numerous times, the INA
specifies the ways in which a noncitizen becomes deportable. Although immigration officers are bound by the INA, lower bureaucrats in the criminal justice
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current categories of immigrants,4 the grounds for deportation
in the realm of criminal activity, and relief waivers. 5 Currently,
noncitizens face increased obstacles to their ability to remain in
the United States, a higher probability of deportation, and
extreme detention conditions-i.e., detention in local jails
mixed in with the criminal population, absence of legal counsel,
secrecy, and lack ofjudicial review-resulting from, for example,
minor visa violations, illegal statuses, or "suspicious" activity or
associations. This Note argues that the United States' post 9/11
stance treats noncitizens like criminals rather than immigrants,
and this type of treatment could lead to unintended, undesirable, and unethical consequences.
Contrary to popular opinion, immigrants are not prone to
crime,6 but, starting in the late 1980s through 1996, the criminal
activities of noncitizens attracted increased public scrutiny. Specifically, in 1996 Congress pushed to enact anti-terrorist legislation, the Antiterrorism and Effective Death Penalty Act
(AEDPA),7 before the one-year anniversary of the Oklahoma City
bombing. Both the AEDPA and the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA)8 expanded the
crime-related deportability grounds. Then Congress enacted the
USA PATRIOT Act 9 weeks after the September 11 attacks, which
system will probably have little knowledge and understanding of the INA's
intricacies.
4. United States law classifies all noncitizens as immigrants or nonimmigrants. The immigrant classifications are pertinent for this Note. In particular,
the INA defines a legal permanent resident (LPR, or a "green card holder") as
a person who has attained the "status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws." Immigration and Nationality Act,
§ 101 (a) (20), 8 U.S.C. § 1101(a) (20) (2000). An LPR has increased rights and
benefits over other immigrants and nonimmigrants present in the United
States. Nonimmigrants-such as diplomats, foreign students, temporary agricultural workers, tourists, or exchange visitors-are admitted for a temporary
time period and a specific purpose. See Ruth Ellen Wasem, Immigration and Naturalization, in
IMMIGRATION POLICY IN TURMOIL
2 (Theodore B. Gunderson et al.
eds., 2002). Outside the scope of this Note, the issue of illegal aliens, referred
to as EWIs (entered without inspection), poses an ever-increasing question
about what to do with the estimated nine million illegal immigrants in the
United States as of the 2000 census of the United States population. Id. at 7.
5. See infra Section III-IV.
6.
See STEPHEN H.
LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY
(3rd ed. 2002). A study conducted by the National Bureau of Economic
Research suggests that immigrants are not prone to crime. Id. at 500.
7. AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996).
8. IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (1996).
9. USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001).
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HOW CAN THE UNITED STATES RECTIFY ITS POST-9/1 I STANCE?
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placed noncitizens' rights (especially those of Legal Permanent
Residents) ' 0 and their statuses" in a precarious position.
Section II of this Note establishes an overview of constitutional and critical issues concerning immigration law. Section III
examines the statutory basis for specific increases in crimerelated grounds leading to deportation. Section III also argues
that Congress' procedural and substantive changes to crimerelated deportation by AEDPA, IIRIRA, and the USA PATRIOT
Act lead to a "rights-deprived" environment for immigrants. Section IV analyzes the implications of the increased hostility toward
immigrants caused by AEDPA, IIRIRA, and the USA PATRIOT
Act. This section argues that the problems in the process of
deportation-namely the amplified use of ethnic profiling, the
lack of procedural safeguards, the strict substantive changes of
the INA's deportation section, and the decreased ability of courts
to review immigration administrative agencies' decisions-have
led and will continue to lead to unanticipated and extreme
results. Finally, Section IV discusses the public policy of strictly
applying the detainment and deportation standards and how the
strict application will lead to an unethical decrease of the rights
and dignity of both immigrants and citizens. Section V concludes with an analysis of the current immigration scheme.
In the wake of September 11, the United States needs to
rethink its border and internal security-i.e., the United States
must reevaluate how it monitors noncitizens and their activities.
Yet, in the securing of the U.S. borders, Congress and the
Supreme Court inappropriately expanded the methods of deportation for noncitizens and sanctioned their lengthy and difficult
detainments. Moreover, Congress conferred the power and discretion formerly held by the Immigration and Naturalization Service" to the Department of Homeland Security to carry out these
10. One of the initial obstacles for a noncitizen is obtaining a certain status in the United States. In general, all noncitizens are "aliens," which is
defined by the INA as any "foreign born person who is not a citizen or a
national of the United States." INA § 101 (a)(3), 8 U.S.C. §1101 (a)(3) (2000).
There are many different statuses. One status in particular, Legal Permanent
Resident (LPR), will be addressed in Section III.
11. A noncitizen's status is inextricably intertwined with his or her level of
ights and opportunities. In the current anti-immigrant climate, the rights and
opportunities of noncitizens are being subjected to a changing and retroactive
application of law.
12. The Homeland Security Act (HSA) of 2002, as amended, transfers the
functions of the Immigration and Naturalization Service (INS) to the Department of Homeland Security (DHS). See Homeland Security Act of 2002, 6
U.S.C.A. § 251 (West Supp. 2003). As of March 1, 2003, the INS no longer
exists, but, for the purposes of this Note, any reference to the former INS con-
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deportations and detainments of noncitzens with few restraints
and even fewer checks. When detained, because of the overriding concern for national security, noncitizens do not have the
benefit of any real procedural or substantive rights, the full scrutiny of the press, review by the judicial system, or the American
public's sense of injustice.
I.
BASIs, FOUNDATIONAL CASES, AND CRITICAL
ISSUES IN IMMIGRATION LAW
CONSTITUTIONAL
In order to appreciate the undesirable consequences facing
noncitizens in the U.S. during this time of heightened national
security, it is imperative first to understand the constitutional
basis, foundational cases, and critical issues of immigration law.
Before this Note can address the issues facing noncitizens'
respective statuses today, it is essential to review the fundamental
and historical challenges that created a hostile immigration environment in the United States. That is, looking back through
U.S. history, American citizens' sentiments towards immigrants
and their acceptance in society have been rooted in the need, or
lack thereof, for labor in this country.1 3
The first federal legislation concerning immigration was the
Alien Act of 1798, which authorized the President to expel from
the United States any alien the President deemed dangerous. 4
With the California Gold Rush of the late 1840s and the subsequent need for labor to build the transcontinental railroad, Chinese immigrants flooded the western coast.'" After the
completion of the transcontinental railroad and the Depression
of 1877, Westerners' distaste for the Chinese led to Congress'
tamined herein should be considered a reference to the DHS. See infra Section
III for a discussion of the previous INS organization as well as the current
structure.
13. See James. F. Smith, A Nation that Welcomes Immigrants? An Historical
Examination of United States Immigration Policy, I U.C. DAVIs J. INT'L L. & POL'Y
227 (1995). See also DESMOND KING, MAKING AMERICANS: IMMIGRATION, RACE,
AND THE ORIGINS OF THE DIVERSE DEMOCRACY
(2000).
14. After the end of its two-year term, the Alien Act of 1798 expired without Congress attempting to renew it. See generallyJoyce C. Vialet, A Brief History
of U.S. Immigration Policy, in IMMIGRATION POLICY IN TURMOIL 9 (Theodore B.
Gunderson et al. eds., 2002) (referencing the Alien Act of 1798, ch. 58., 1 Stat.
570, 570-71 (1798)). "In the last two decades of the 19th century... the Federal Government assumed an increasingly active role, with the first general
immigration statute enacted in 1882." Id. at 9. The United States' goals in
receiving the immigrants "included the need for new citizens who would participate in national economic and political growth." Id. at 10.
15. See generally ROGER DANIELS & OTIS L. GRAHAM, DEBATING AMERICAN
IMMIGRATION,
1882-PRESENT 96 (2001).
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HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
609
enactment of a statute suspending all future immigration of Chinese laborers.1 6 In general, once the United States no longer
needed laborers, Congress suspended immigration. This suspension reflected the current popular sentiment against immigrants.
Subsequently, in 1889, the Supreme Court in Chae Chan Ping
v. United States 7 (The Chinese Exclusion Cases) determined that
the federal government, as represented by Congress, possessed
18 In
the complete authority to determine immigration policies.
essence, the Supreme Court found that controlling a nation's
borders was an implicit federal power-one that was essential to
the establishment and preservation of national security.
The Court made it clear that Congress had plenary power
over noncitizens at the borders and inside the United States in
terms of immigration law. When addressing the power of the
United States Government over immigration law, the Supreme
Court stated in Nishimura Ekiu v. United States.
[E]very sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the
entrances of foreigners within its dominions, or to admit
them only in such cases and upon such conditions as it may
see fit to prescribe. In the United States, this power is
vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political
department of the government, and may be exercised
either through treaties made by the President and Senate,
or through statutes enacted by Congress ....1
16. Besides an 1875 statute barring convicts and prostitutes, the 1882 Act
excluded Chinese immigrants, which "remained an important facet of immigration policy until it was repealed in 1943." LEGOMSKY, supra note 6, at 125 (referencing Act of March 3, 1875, ch. 141, 18 Stat. 497 (1875); Act of May 6, 1882,
ch. 126, 22 Stat. 58 (1882)).
17. 130 U.S. 581 (1889).
18. Id. After Chae Chan Ping, the Court decided in Nishimura Ekiu v.
United States, 142 U.S. 651 (1892), that there is an inherent power in the sovereign to control the borders. Then in Fong Yue Ting v. United States, 149 U.S.
698 (1893), the general federal deportation power was affirmed against numerous constitutional challenges. Objections to the plenary doctrine were voiced
before its adoption. See, e.g., Louis Henkin, The Constitution and United States
Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 HARv. L. REv. 853,
862 (1987) (discussing how the plenary doctrine emerged in an environment of
racist and nativist sentiments throughout America).
19. Nishimura Ekiu, 142 U.S. at 659-60.
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Despite continuing uncertainty about the exact constitutional or external source2" of federal immigration power, "it is
settled law today that the power exists."2 1 As a result, when Congress passes legislation, the courts uphold the legislation through
less than sound judicial reasoning.2 2
The Supreme Court then moved beyond the constitutional
breadth2" afforded to Congress through Chae Chan Ping and
Nishimura Ekiu, and in 1893, the Supreme Court decided Fong
Yue Ting v. United States.2 4 The Fong Yue Ting Court left an important and devastating legacy upon American immigration law
20. Possible sources include the enumerated powers of the Commerce
Clause, U.S. CONST. art. I, § 8, cl. 3; the Migration Clause, U.S. CONST. art. I,
§ 9, cl. 1; the Naturalization Clause, U.S. CONST. art. I, § 8, cl. 4; the War Clause,
U.S. CONST. art. I, § 8, cl. 11; or any implied constitutional power, according to
the Law of Nations. See generally Sarah H. Cleveland, The Plenary Power Background of Curtiss-Wright, 70 COLO. L. REV. 1127, 1154 (1999) (clarifying that the
"authority inherent in sovereignty" recognized in cases like Chinese
Exclusion
"bore an uncertain relationship to the enumerated and reserved powers in the
Constitution").
21.
LEGOMSKV, supra note 6, at 26.
22. Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and
Deference in U.S. Immigration Law, 71 TUL. L. REv. 703, 715 n. 52 (1997). Kanstroom offers an excellent criticism of the rigid civil and criminal dichotomy
through an analogy of Scott v. Sandford, 60 U.S. 393 (1857). Kanstroom's article argues that U.S. immigration law needs increased restraint, and targets the
judicial branch as able to offer oversight concerning the discretionary immigration agencies' decisions. Kanstroom, supra, at 703.
23. In theory, the Constitution had always alluded to the complete power
of Congress to determine immigration policies, but this power was constructed
through a historical path that reflects the current sentiment towards immigrants and the need for laborers in the United States.
24. 149 U.S. 698, 730 (1893). This Chinese Exclusion Act of 1882 reads
in part:
[I]t shall be the duty of all Chinese laborers, within the limits of the
United States at the time of the passage of this act, and who are entitled to remain in the United States, to apply to the collector of internal revenue of their respective districts, within one year after the
passage of this act, for a certificate of residence; and any Chinese
laborer, within the limits of the United States, who shall neglect, fail or
refuse to comply with the provisions of this act ... shall be deemed
and adjudged to be unlawfully within the United States ....
The Act of May 5, 1892, ch. 60, § 6, reprinted in LEGOMSKV, supra note 6, at 30
(referencing the Act of May 5, 1892, ch. 60, 27 Stat. 25 (1892)). The case dealt
with three Chinese laborers who were arrested for failure to possess the
required certificates. See Fong Yue Ting v. United States, 149 U.S. 698, 699
(1893). The Supreme Court held that "Congress, having the right, as it may see
fit, to expel aliens of a particular class, or to permit them to remain, has
undoubtedly the right to provide a system of registration and identification of
the members of that class within the country, and take all proper means to carry
out the system which it provides." Id. at 714.
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HOW CAN THE UNFIED STATES RECTIFY ITS POST-9/11 STANCE?
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because it distinguished between civil and criminal proceedings
2
in the realm of deportation. ' The Court's designation of deportation as a civil matter changed the course of immigration law
and the lives of immigrants who committed minor and major
crimes. After convicted noncitizens served their criminal
sentences, they lost their statuses, lives, and property in the
United States through their subsequent deportations, because
the criminal system was wholly separate from the civil system.
The Supreme Court's construction of Congress' great discretion in immigration law has led to three critical dilemmas facing
immigrants today: (1) harsh consequences arising from the use
of the plenary doctrine; (2) a constitutionally suspect dichotomy
between criminal proceedings and the civil immigration proceedings; and (3) an inability by noncitizens' to have their cases
reviewed.
First, through the plenary doctrine, instead of relying upon
firm legal analysis, the Supreme Court not only upheld racist statutes as constitutional 26 but indulged the popular opinion of the
time. 27 The Court's decision that Congress has plenary power
over immigration issues leads to the unintended consequence of
"political departments [being] largely immune from judicial concontrol over
trol" when the issue is the federal2 government's Fiallo
v. Bell,29
in
stated
As
'
noncitizens.
excluding
or
expelling
the Supreme Court's "decisions have not departed from this
long-established rule ....
[F] or example, the Court had occasion
and
to note that 'the power over aliens is of a political character
3
Reflecting
review."
judicial
narrow
to
only
therefore subject
upon the changing political atmosphere of the United States,
one statement is true: that the political branches through history
have bowed to popular sentiment. Justice Frankfurter explained
25. Fong Tue Ting, 149 U.S. at 730.
26. See generally Kanstroom, supra note 22.
27. How legitimate is it for the Supreme CourtJustices to permit external
influences, namely popular preferences, to affect their opinions of constitu-
tional questions?
28. Annette M. Toews, Citizenship Considerationsin Minnesota CriminalJustice and the Supremacy of FederalImmigration Law, 25 Wm. MITCHELL L. Rv. 1245,
1251 (1999) (citing Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citing Shaughnessy
v. Mezei, 345 U.S. 206, 210 (1953))). Id. at 1251 n.25. See also Harisiades v.
Shaughnessy, 342 U.S. 580 (1952); Lem Moon Sing v. United States, 158 U.S.
538 (1895); Fong Yue Ting v. United States, 149 U.S. 698 (1893); Chae Chan
Ping v. United States, 130 U.S. 581 (1889).
29. 430 U.S. 787 (1977).
30. Id. at 792 (citing Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21
(1976); accord, Fong Yue Ting, 149 U.S. at 713; Mathews v. Diaz, 426 U.S. 67,
81-82 (1976)).
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the complexity and the historical roots of Congress' power and
the lack of review by the judicial system in the area of immigration in Galvan v. Press.3
[M]uch could be said for the view, were we writing on a
clean slate, that the Due Process Clause qualifies the scope
of political discretion heretofore recognized as belonging
to Congress in regulating the entry and deportation of
aliens.... But the slate is not clean. As to the extent of the
power of Congress under review, there is not merely 'a
page of history,' . .. but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are
peculiarly concerned with the political conduct of government. In the enforcement of these policies, the Executive
Branch of the Government must respect the procedural
safeguards of due process.... But that the formulation of
these policies is entrusted exclusively to Congress has
become about as firmly embedded in the legislative and
judicial tissues of our body politic as any aspect of our
government....
We are not prepared to deem ourselves wiser or more sensitive to human rights than our predecessors, especially those who
have been most zealous in protecting civil liberties under the
Constitution, and must therefore under our constitutional system recognize congressional power in dealing with aliens ... 32
Justice Frankfurter's statements exemplify the need for judicial review of the immigration system; at the same time, they
explain why the Court shows extreme restraint in the area of
immigration. Justice Frankfurter's statements illustrate that the
Court's unwillingness to become involved in the immigration system and in the deprivation of the rights and dignity of noncitizens is the product of many factors, including judicial
precedent and respect for the Congress' complete power over
immigration. However, this line of reasoning leads to the unintended consequence of guaranteed abuses inflicted upon noncitizens by Congress' shifting political views without the proper
judicial review.
The second dilemma facing noncitizens is the Supreme
Court's construction of a rigid dichotomy between criminal proceedings and the civil proceedings of the immigration system.
The Court's construction of this rigid dichotomy deprived people in immigration proceedings of the constitutional protections
afforded to defendants in criminal trials: due process, the right
31.
32.
347 U.S. 522 (1954).
Id. at 530-32.
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HOW CAN THE UNITED STATES RECTIFY
ras POST-9/ll STANCE?
613
to confront his accuser, the right to a speedy trial, the Sixth
Amendment right to assistance of counsel, the Fourteenth
Amendment's Exclusionary Rule, the Ex Post Facto Clause, the
Double Jeopardy Clause, the Eighth Amendment's protection
against cruel and unusual punishment, and the Bill of Attainder
34
Clause.3 3 In United States ex rel. Knauff v. Shaughnessy, the Court
continues the line of reasoning it established in 1889, and recites
the dicta that "[w] hatever the procedure authorized by Congress
is, it is due process as far as an alien denied entry is concerned."3 5 In this case, the Court denies any violation of the First
Amendment, the Fifth Amendment, and the Fourteenth Amendment Due Process clause, and states that deportation is civil and,
thus, not punishment.
Inside the designation of deportations as civil proceedings,
the Supreme Court facilitated the transfer of discretionary power
from Congress to the agency formerly known as INS, which led
36
to virtually unreviewable decisions by entry-level officers. Thus,
not only does the judicial system allow Congress nearly unfettered power over immigration in the United States with little
review, the fact that deportation is a civil matter eliminates the
constitutional protections applicable to criminal cases. This lack
of constitutional safeguards leads to the undesirable consequence of treating immigrants with less dignity than is afforded
to criminals.
Because of the Court's rigid construction of immigration
proceedings as a civil matter, noncitizens are facing a third
33. David Cole, Enemy Aliens, 54 STAN. L. REv. 953 (2002). Cole argues
persuasively that the criminal process entitles immigrants to the due process
rights in the criminal context:
The Constitution does distinguish in some respects between the rights
of citizens and noncitizens. But in fact, relatively little turns on citizenship status. The right to vote and the right to run for federal elective
office are restricted to citizens, but all of the other rights are written
without such limitation. Thus, the First and Fourth Amendments protect the rights of "the people," while the Fifth and Fourteenth Amendment Due Process Clauses, as well as the Equal Protection Clause,
extend their protections to all "persons." ... For more than a century,
the Court has recognized that the Equal Protection Clause is "universal in [its] application to all persons within the territorial jurisdiction,
without regard to differences of ... nationality."
Id. at 978-79.
34. 338 U.S. 537 (1950).
35. Id. at 544.
36. See generally Michael J. Churgin, Immigration Internal Decisionmaking:A
View From Histoiy, 78 TEX. L. REv. 1633 (2000) (discussing the immigration process at the turn of the twentieth century and the great deference allotted to the
INS agents).
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dilemma: namely, the lack of a voice to fight against deportation
orders. Traditionally, "[c]onsistent with the civil nature of the
proceeding, various protections that apply in the context of a
criminal trial do not apply in a deportation hearing. '3 7 That is,
the deportation proceeding has historically been considered a
streamlined mechanism where procedural safeguards do not
apply. For example, the noncitizen "must be given 'a reasonable
opportunity to be present at [the] proceeding,' but if the [noncitizen] fails to avail himself of that opportunity the hearing may
proceed in his absence. 3 8 Yet, in Yamataya v. Fisher,39 the
Supreme Court held that the government may not deport an
alien without giving him the right to answer why the deportation
is improper.40 Pursuant to AEDPA, IIRIRA, and the USA
PATRIOT Act, the right to answer why the deportation is
improper has diminished-increasing the likelihood that noncitizens will be punished without the opportunity to contest the
merits of their case.
Generally speaking, commentators have argued that there is
a middle ground between the severity of civil deportation and
the cumbersome application of criminal proceeding protections
to deportation cases:4
There is a middle ground of "quasi-criminal" cases in
which some, but not all, of the constitutional safeguards
apply. In these cases, the government does not impose
hardships in order to punish for past wrongdoing, but
instead regulates or imposes a hardship on certain individuals in order to achieve some benefit for other members of
the community. However, because the sanction appears at
least partially penal in nature, some constitutional safe42
guards are relevant.
Although the middle ground of "quasi-criminal" cases with
some constitutional safeguards seems appealing to deportation
cases, the reality is that after September 11, 2001 and the USA
PATRIOT Act, Congress and the public are less concerned about
the rights of immigrants. In addition to Congress' insufficient
37.
38.
39.
40.
cess, but
process.
INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)
Id. at 1038-39 (citing 8 U.S.C. §1252(b)).
189 U.S. 86 (1903).
Id. at 100-01. The Court ultimately found no violation of due proset a precedent that deportation proceedings must comport with due
41. See Robert Pauw, A New Look at Deportation as Punishment: Why at Least
Some of the Constitution's Criminal Procedure Protections Must Apply, 52 ADMIN. L.
REV. 305, 316-17 (2000).
42. Id.
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HOW CAN THE UNITED STATES RECTIFY FrS POST-9/11 STANCE?
615
interest in the rights of immigrants, the judicial system and the
immigration system both appear to be following the popular antiimmigrant sentiment, as well.
The United States must not neglect the rights and human
dignity afforded to all "persons" under the Constitution. 43 Notwithstanding the obstacles that a noncitizen must overcome in
relation to his or her status and the standards set forth in the
foundational Chinese Exclusion Cases,4 4 the Supreme Court has
found some limits to Congress' plenary power.4 5 These limitations include the following: (1) Congress must choose a "constitutionally permissible means of implementing [the plenary]
power [over immigration]"; 4 6 and (2) "Congress has plenary
authority in all areas in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend
some other constitutional restriction."4 7 Additionally, pursuant
to two decisions arising from the 2000 term, Zadvydas v. Davis4 8
and INS v. St. Cyr,4" scholars were optimistic about the diminishing scope of the plenary power doctrine. However, their optimism has waned because, in the post-September 11 United
States, the limits to the plenary doctrine rest on narrow and precarious ground due to the lack of judicial review of immigration
decisions5 ° and the increased discretion given to the federal government by the judicial branch. 5 '
Beyond the decreased optimism in the judicial system about
protecting the rights of noncitizens, the reorganization of the
43. See Cole, supra note 33, at 957, 959 (discussing the limits the Constitution places "on sacrificing the immigrants' liberties for citizens' purported
security"). The "basic rights at stake-political freedom, due process, and
equal protection of the laws-are not limited to citizens, but apply to all 'persons' subject to our laws." Id. at 957. Cole takes the rights of "persons," meaning noncitizens, farther than the Supreme Court has held.
44. See Chae Chan Ping v. United States, 130 U.S. 581 (1889).
45. See also American-Arab Anti-Discrimination Committee v. Meese, 714
F. Supp. 1060 (C.D. Cal. 1989) (refusing to use the plenary power doctrine
against First Amendment challenges to deportation. For a more recent case on
the cracks in the plenary power doctrine, see Zadvydas v. Davis, 533 U.S. 678
(2001).
46. INS v. Chadha, 462 U.S. 919, 941 (1983).
47. Buckley v. Valeo, 424 U.S. 1, 132 (1976) (referencing McCulloch v.
Maryland, 17 U.S. 316 (1819)) (citation omitted).
48. 533 U.S. 678 (2001). See infra Section IV.
49. 533 U.S. 289 (2001). See infra Section IV.
50. Under Yamataya v. Fisher (The Japanese Immigrant Case), LPRs have
procedural due process rights. See 189 U.S. 86 (1902). However, with the USA
PATRIOT Act, immigrants' rights to judicial review are practically zero. See
infra Section III-IV.
51. See infra Section IV.
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INS creates open questions about the protection of noncitizens'
rights. As of March 1, 2003, the INS was transferred to the
Department of Homeland Security52 into two separate divisions:
Border and Transportation Security (BTS) , 3 which was delegated the responsibility of the border patrol, detention, and
removal of noncitizens, intelligence, investigations, and inspections,54 and the Bureau of Citizenship and Immigration Services
(BCIS), which provides immigration services. 55 The BCIS is now
referred to as the U.S. Citizenship and Immigration Services
(USCIS).56 In the former INS, the Agency's decisions and review
of those decisions were controlled solely by the Attorney General. Because of the new oversight structures, one could be optimistic about the reorganization of the INS into the BTS and
USCIS. For example, the Under U.S. Secretary of the BTS must
inspect the operations and management of the BTS through the
Professional Responsibility and Quality Review. However, the
optimism must be stilted by the current anti-immigrant sentiment, as well as the fact that the same individuals who run the
BTS must
also do the review of professional responsibility and
57
quality.
52. The DHS has five major directorates or divisions: Border and Transportation Security, Emergency Preparedness and Response, Science and Technology, Information Analysis and Infrastructure Protection, and Management.
See U.S. Dep't of Homeland Security, DHS Organization, at http://
www.dhs.gov/dhspublic/display?theme=9&content=2973 (last visited Feb. 21,
2004) (on file with Notre Dame Journal of Law, Ethics & Public Policy).
53. BTS "is led by Under Secretary Asa Hutchinson, and is responsible for
maintaining the security of our nation's borders and transportation systems."
Id.
54. See Homeland Security Act of 2002 § 441, 6 U.S.C.A. § 251 (West
Supp. 2003). Border and Transportation Security was divided into the Bureau
of Customs and Border Protection and Bureau of Immigration and Customs
Enforcement. See generally Fact Sheet, The United States Department of Homeland Security, Border Reorganization Fact Sheet (Jan. 30, 2003), available at
http://uscis.gov/graphics/publicaffairs/factsheets/btsreorg.pdf
(last visited
Feb. 8, 2004) (on file with the Notre Dame Journal of Law, Ethics & Public
Policy).
55. See Homeland Security Act of 2002 § 451, 6 U.S.C.A. § 271 (West
Supp. 2003).
56. This change from BCIS to USCIS does not change the agency's immigration functions. See Aliens and Nationality; Homeland Security; Reorganization of Regulations, 68 Fed. Reg. 10,349 (March 5, 2003).
57. See infra Section IV.
2004]
II.
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/ I1STANCE?
PROCEDURAL AND STATUTORY
DETAINMENT:
How
BAsIS
617
FOR DEPORTATION AND
WILL THE RIGHTS OF IMMIGRANTS
BE PROTECTED?
The current lack of dignity and rights of noncitizens is a
result of Congressional legislation from 1990 to the current USA
PATRIOT Act that creates a harsh environment for noncitizens
in the United States and leads to the unintended consequence of
treating noncitizens more like criminals than immigrants. Since
the 1990s, Congress has exhibited a trend of decreasing judicial
review of deportations and detainments while increasing the
number of deportable crimes. In order to understand the current system of treating noncitizens more like criminals than
immigrants and the proverbial "blinders" that Congress wears
when faced with threats of terrorism and national security, it is
essential to examine the consequences of Congress' 1996 legislation-AEDPA and IIRIRA-that was passed during a time of
heightened national security: the one year anniversary of the
Oklahoma City bombing.
A.
1996 Legislation: Congress' Blinders
Following Congress' Acts that pre-date the 1996 legislation,
which set the groundwork for how drastically any criminal activity
or criminal-like activity may affect a noncitizen's status,58 in 1996,
during the Clinton Administration, Congress passed AEDPA,
which contained severe provisions for noncitizens. These provisions included the following: controversial summary exclusion
procedures, 59 an expansion of the grounds of deportability, the
restriction of discretionary relief, and the requirement of detention of almost all criminal offenders.6' Specifically, AEDPA cre58. First, the Immigration Act of 1990 expanded the list of so-called
aggravated felonies and decreased the procedural safeguards. Immigration Act
of 1990 § 515(a) (2), Pub. L. No. 101-649, 104 Stat. 4978, 5053 (1990). The
Immigration and Nationality Technical Corrections Act of 1994 added white
collar crimes to the definition of aggravated felony, thus broadening the scope
of criminal conduct that renders aliens deportable. Immigration and Nationality Technical Corrections Act of 1994 § 222, Pub. L. No. 103-416, 108 Stat. 4305,
4320 (1994). Then in 1994, the Violent Crime Control and Law Enforcement
Act of 1994 expedited the procedures for removing alien criminal offenders
from the United States, thus limiting the procedural safeguards afforded to
deportable alien criminal offenders. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (1994)).
59. Margaret H. Taylor, Behind the Scenes of St. Cyr and Zadvydas: Making
Policy in the Midst of Litigation, 16 GEO. IMMICR. L.J. 271, 278 (2002).
60. When signing AEDPA, President Clinton noted that it "'makes a
number of major, ill-advised changes in our immigration laws having nothing to
do with fighting terrorism. These provisions eliminate most remedial relief for
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ated harsh provisions for immigrants in the changes it made to
61
the categories of substantive deportable aggravated felonies
and in the elimination of possible relief.62 AEDPA changed the
classification of immigration proceedings from "deportation" or
"exclusion" to "removal," and it expansively and retroactively
made LPRs removable for past crimes. 63 Then, just five months
later, Congress attempted to "amend" the harsh provisions
placed upon immigrants by the AEDPA through IIRIRA's
enactment.
IIRIRA, however, did not amend the situation; it instead
made the situation more severe for noncitizens by focusing on
the apprehension and removal of undocumented immigrants.6 4
long-term legal residents.... The Administration will urge Congress to correct
them in the pending immigration reform legislation."' Id. at 278 n.36, citing
Statement by President William J. Clinton upon signing S. 735, 32 WEEKLY
COMP. PREs. Doc. 961-1 (Apr. 24, 1996).
61. In 1988, Congress added the term "aggravated felony" to the Immigration and Nationality Act, thereby creating a new category of removable
crimes. See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7342, 102 Stat.
4181, 4469-70 (1988) (codified as amended at 8 U.S.C. § 1101 (a) (43) (2000)).
AEDPA added as aggravated felonies the following: commercial bribery, counterfeiting, perjury, bribery of a witness, certain kinds of stolen vehicle trafficking, obstruction of justice, a second conviction involving gambling offenses,
failure to appear before a court to answer to a felony charge, and illegal re-entry
if an alien already has a conviction for an aggravated felony. See AEDPA
§ 440(e); 8 U.S.C § 1101 (a) (43) (2000).
62. Before 1996, an LPR who committed a deportable offense could
apply for relief ifhe had resided in the United States for seven years and the
immigration judge balanced the equitable factors in favor of the LPR. PostAEDPA, INS trial attorneys and immigration judges denied waivers under Section 212(c) for LPRs with minor controlled substance violations. See Taylor,
supra note 59, at 278 n.35.
63. See Richard Prinz, Criminal Aliens Under the IIRIRA, A.L.I.-A.B.A. CONTINUING LEGAL
EIuc. 319 (1999):
Both AEDPA and IIRIRA have added new crimes and lowered the sentence required for existing crimes to the point that seemingly all convictions considered felonies under federal law will qualify as
aggravated felonies. The definition of aggravated felony at INA
§ 101(a)(43), 8 U.S.C. § 1101(a)(43), began as one paragraph in
1988. Eight years later the provision consists of twenty-one paragraphs
labeled (A) through (U). In 1988 the statute identified three general
crimes. Today over fifty crimes or general classes of crimes are enumerated. In addition to the nature of the amount of loss, maximum
possible penalty for the crime and actual sentence imposed, regardless
of any suspension or probation of that sentence, are the current mechanisms to qualify crimes as aggravated felonies.
Id. at 322-23.
64. In the realm of aggravated felonies, IIRIRA reduced the sentence
requirement leading to deportation from a five-year minimum to a one-year
minimum for the following crimes: (1) a crime of violence that is defined in 18
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HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
619
In the process, Congress essentially altered several areas of immigration law. IIRIRA expanded the scope of the substantive criteria for removing noncitizens,6 5 restricted discretionary relief, and
6 6 Procedurally,
created various expedited removal procedures.
IIRIRA, not to mention AEDPA, decreased the remedies and
waivers available to criminal immigrants.67 By expanding the
definition of "aggravated felony" and replacing relief from
deportation under section 212(a) with a far more limited remedy
known as "cancellation of removal for permanent residents,"
IIRIRA makes a conviction of a crime grounds for deportability
without a realistic possibility for relief.6" Without the realistic
U.S.C. § 16 as "an offense that has an element the use, attempted use, or
threatened use of physical force against person or property of another, or any
other offense that is a felony that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense"; (2) non-citizen smuggling; (3) document
fraud; (4) burglary; (5) a RICO violation; (6) a minor controlled substance violation, INA § 237(a)(2)(B)(i); (8) theft, 8 U.S.C. § 1101(a) (43) (G) (2000).
IIRIRA, § 321(a)(4), 8 U.S.C. § 1101(a)(43) (2000). Under the "crime of violence" subset of the "aggravated felony" category, an immigrant may be
removed if a court finds that a crime of violence includes driving while intoxicated ("felony DWI"). For an interesting discussion about DWI as a crime of
violence under 18 U.S.C. § 16(B), see Julie Anne Rah, Note, The Removal of
Aliens Who Drink and Drive: Felony DWI As A Crime of Violence Under 18 U.S.C.
§16(B), 70 FoRDHAM L. REV. 2109 (2002).
65. IIRAIRA§ 321(a)(1), 8 U.S.C. §1101(a) (43) (A) (2000). IIRIRAmodified the definition of "aggravated felony" by expanding the class of crimes to
include rape and sexual abuse of a minor. Therefore, many kinds of misdemeanors are now called "aggravated felonies" by the INS and a conviction could
make someone deportable, regardless of whether or not an immigrant has children or other family here and regardless of any other circumstances. Crimes
such as shoplifting, transporting a prostitute, possession of marijuana, domestic
violence, violating a protection order, gambling, perjury, entering the country
without an inspection by the INS, and entering the country without the proper
paperwork with you, can make an immigrant deportable. See generally Prinz,
supra note 63.
66. See INA § 235(b), 8 U.S.C. § 1225(b) (2000). If an immigration
officer determines that an arriving noncitizen is inadmissible because he or she
arrived with either fraudulent immigration documents or no documents, the
officer may order the alien removed from the United States without a regular
removal hearing. Id.
67. The waivers for deportation include the following sections of the INA:
§§ 237(a) (1) (D) (ii), (E) (ii)-(iii), (H); § 237(a) (2) (A) (v); § 237(a) (3) (C) (ii);
§ 237(c).
68. See INA § 240A, 8 U.S.C. § 1229B (Supp. 1997). Cancellation of
Removal (formerly known as Suspension of Deportation and § 212(c) Waiver of
Deportability) replaced the leniency offered to certain aliens who were longtime residents of the United States, and who showed equitable grounds for
waiver. Under IIRIRA, conviction of a crime that constitutes grounds for
deportation alters and, in most instances, eliminates availability to relief.
Although under Cancellation of Removal, longtime residents need only to have
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possibility for relief, the various expedited removals require
greater scrutiny, because expedited removals not only effect
criminal noncitizens but all noncitizens. All noncitizens are
potentially affected because IIRIRA vests the power of expedited
removal in the hands of individual immigration officers whose
decisions are neither judicially nor administratively reviewable.6 9
Another example of the judicial system's inability to offer
noncitizens relief from such severe and unrelenting immigration
legislation is illustrated in the change in the definition of "conviction" of deportable crimes. Prior to IIRIRA's definition of "conviction," the Board of Immigration Appeals'7 ° decision in Matter
of Ozkok 7 ' held, for immigration purposes, that a conviction exists
when any of the following three factors are present:
(1) a judge or jury has found the alien guilty or he has
entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilty; (2) the
judge has ordered some form of punishment, penalty, or
restraint on the person's liberty to be imposed; and (3) a
judgment or adjudication of guilt may be entered if the
person violates the terms of his probation or fails to comply with the requirements of the court's order without the
availability of further proceedings regarding the person's
guilt or innocence of the original charge.7 2
That is, prior to IIRIRA, "conviction" needed finality-i.e., a
decision of guilt or nolo contendere. After IIRIRA's enactment,
the conviction need not be final.7" Moreover, for purposes of
deportability, IIRIRA changes the relevant penalty to be considered in the definition of deportable crimes from penalties that
are imposed to sentences that ajudge may impose." By both eliminating the finality of the conviction and changing the sentencing
requirements, IIRIRA increases the chances that an LPR or
been an LPR for five rather than seven years, the second subsection of INA
§ 240A lists "good moral character" as a prerequisite to the waiver. If an immigrant commits a crime, then it is almost impossible to prove good moral character. Interestingly, IIRIRA offers a specialized type of cancellation of removal for
battered spouses, but this relief is still unavailable to criminal immigrants. See
INA § 240A(b) (2), 8 U.S.C. § 1229B(b) (2) (Supp. 1997).
69. See INA § 235(b).
70. The Board of Immigration Appeals (BIA) hears appeals from the
immigration judges' decisions and from certain INS decisions.
71. 19 I. & N. Dec. 546, 551 (B.I.A. 1988).
72.
Id. at 551.
73.
See INA §§ 237(a)(2)(A)(i-iv).
See INA §§ 101 (a) (43) (F), (G), (J).
74.
2004]
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
621
immigrant may be deported.7 5 IIRIRA eliminates the judicial system's opportunity to show compassion to noncitizens that face
deportation at the end of possible sentences.7 6 AEDPA and
IIRIRA both stifle any judicial scrutiny of deportation cases and
create an environment of almost entirely unregulated
administration.7 7
Currently, IIRIRA continues to deprive noncitizens any judicial review of decisions made by the USCIS, BTS, and BIA, just as
IIRIRA deprived noncitizens of review of the decisions made by
immigration officers. 78 Moreover, a result of the aforementioned legislation is that U.S. courts impose virtually no substantive limits on deportation power even though IIRIRA and AEDPA
violate both the substantive as well as the procedural process
rights of immigrants. Since immigration officers have such complete control over the lives of immigrants-in particular in the
areas of noncitizens' statuses and cases of expedited removalsthe possibility of neglect or abuse in the current immigration system exists and is increased by the changes set forth in the subsequent sections.
B.
USA PATRIOT Act: Congress Returns to Its Blinders
Pursuant to this analysis of the increasingly severe atmosphere under which noncitizens reside in the United States, Congress once again placed blinders on in terms of immigration
legislation in the enactment of the USA PATRIOT Act just six
weeks after the terrorist attacks on September 11, 2 001." 0 Specifically, the USA PATRIOT Act "makes noncitizens deportable for
wholly innocent associational activity, excludable for pure
speech, and detainable on the Attorney General's say-so, without
a hearing and without a finding that they pose a danger or flight
risk."8" The Act affords the Attorney General the ability to certify
75. See Lisa Mendel, Note, The Court's Failure to Recognize Deportation as
Punishment: A CriticalAnalysis of Judicial Deference, 5 SUFFOLK J. TIUAL & App.
ADvoc. 205, 211 (2000).
76. IIRIRA "disappointed those who had hoped to reconsider AEDPA's
innovations, and . . . cracked down even harder on long-term residents with
minor criminal convictions." Taylor, supra note 59, at 279.
77. Kanstroom, supra note 22, at 705.
78. LEGOMSKY, supra note 6, at 134. See also Calcano-Martinez v. INS, 533
U.S. 348 (2001); INS v. St. Cyr, 533 U.S. 289 (2001) (both considering the
meaning and the constitutionality of the restraints on judicial review).
79. USA PATRIOT Act of 2001, Pub. L. No. 107-56,115 Stat. 272 (2001).
80. Cole, supra note 33, at 966 ("Before September 11, however, aliens
were deportable for engaging in or supporting terrorist activity, but not for
Act of 1990, 8 U.S.C.
(citing Immigration
mere association.")
§§ 1182(a) (3) (B) (iii), 1227(a) (4) (B) (2000)).
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and detain any noncitizen under section 236A if the Attorney
General has "reasonable grounds to believe" that the noncitizen
has engaged in any activity that "endangers the national security
of the United States.""1 An examination of the USA PATRIOT
Act illustrates how the expansion of terrorism-related inadmissibility and removal grounds, combined with sweeping and nonspecific definitions, cause dramatic hardships for noncitizens.
The consequence of the Act's emphasis on mandatory detentions
of suspected terrorists without a meaningful review system results
in the neglect of noncitizens' dignities and rights. By aggregating the lack of respect and dignity afforded to noncitizens and
the violations of their rights, the infringement even of citizens'
rights is an understandable and observable consequence.8 2
Analyzing the USA PATRIOT Act's definitions pertaining to
terrorism demonstrates the blinders that Congress wore through
the passage of this legislation. "Domestic terrorism" is defined in
section 802 of the USA Patriot Act.8 3 "Terrorist activity" includes,
among other things, any use or threat to use a weapon, and the
Act includes as a "terrorist organization" a group of two or more
persons that has used or threatened to use a weapon.8 4 The USA
PATRIOT Act's broad definitions relating to terrorism and association to terrorism, raise at least three pertinent questions: (1)
what does "activity" mean?; (2) what type of association will suffice?; and (3) how much knowledge of the organization's activities must the citizen or noncitizen have in order to invoke
81. § 412, 8 U.S.C.A. § 1226a(a)(3) (West Supp. 2003). The Attorney
General may delegate the power to certify only to the Deputy Attorney General
who may not delegate the authority. 8 U.S.C.A. § 1226a(a) (4).
82. See infra notes 88-97 and accompanying text.
83. Section 802 of the USA PATRIOT Act defines "domestic terrorism" to
mean activities occurring primarily within the territorial jurisdiction of the
United States involving acts dangerous to human life that are a violation of the
criminal laws of the United States or any state and appear to be intended to
intimidate or coerce a civilian population, influence the policy of a government
by intimidation or coercion, or affect the conduct of a government by mass
destruction, assassination, or kidnapping. § 802, 115 Stat. at 377.
84. USA PATRIOT Act § 411, 8 U.S.C.A. § 1182(a) (3) (B) (iii) (V), (VI);
§ 1182(a) (3) (B) (vi) (West Supp. 2003). The USA PATRIOT Act defines association with a terrorist organization as:
Any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist
organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.
§ 411, 8 U.S.C.A. § 1182(a) (3) (F).
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
2004]
623
criminal charges? 5 For noncitizens, this definition of "terrorist"
and "organization" could have and has had dramatic effects on
their lives. Entry-level bureaucrats who are unaware of the current immigration laws or are of the mind to discriminate can
severely damage an immigrant's life with a certain criminal
charge, indictment, plea, or review by criminal justice officers,
BTS agents, or USCIS representatives. Because of the openended definitions, lack of review of the immigration system's
agents' decisions, and the current anti-immigrant sentiment,
judicial scrutiny is needed more than ever.
In addition to the onslaught of the USA PATRIOT Act's
unrelenting provisions and the anti-immigrant sentiment running rampantly throughout the United States, the protection of
the rights of immigrants-a particularly vulnerable group
because of their absence in the legislative and voting process-is
now pushed aside by the greater call for national security:
We love liberty and security, but recognize that sometimes
we must limit one to enjoy the other. When a democratic
society strikes that balance in ways that impose the costs
and benefits uniformly on all, one might be relatively confident that the political process will ultimately achieve a
proper balance. But all too often we seek to avoid the difficult
trade-offs by striking an illegitimate balance, sacrificingthe liberties of a minority group in order to further the majority's security
interests. In the wake of September 11, citizens and their
elected representatives have repeatedly chosen to sacrifice
the liberties of noncitizens in furtherance of the citizenry's
purported security. Because noncitizens have no vote, and
thus no direct voice in the democratic process, they are a
particularly vulnerable minority. And in the heat of the
nationalistic and nativist fervor engendered by war, nonciare even less likely to weigh in the
tizens' interests
8 6
balance.
In this heightened time of terrorism, economic strife, and
anti-immigrant sentiment, "what we are willing to allow government to do to immigrants creates precedents for how it treats
citizens." 7 When the United States violates the rights of a vul85.
This is not an exhaustive list but merely an illustrative line of
questioning.
86. Cole, supra note 33, at 956-57 (emphasis added). Cole effectively
argues that even though the United States fears for our national security, the
United States cannot trump the rights of the vulnerable immigrant group. Id.
87. Id. at 959.
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nerable group, the sweeping result is one of violations of all
noncitizens and United States citizens alike.
One such example involves material witnesses. A material
witness is one who the United States government detains without
charge by a court order because the detained individual is
believed to have information relevant to an upcoming trial or
grand jury probe."8 A material witness can be a U.S. citizen or
noncitizen. The material witness provision, 18 U.S.C. § 3144,
provides a rare exception to U.S. law because it allows for the
detainment of an individual without probable cause of criminal
conduct. However, to successfully receive a material witness warrant, an applicant must prove that incarceration is required to
secure the witness's testimony. For example, if evidence exists to
hint that a witness might purposely evade testifying or if a witness's life is in danger, then the warrant may be obtained.
The statute neither sets the limits on the maximum length
of time a witness can be detained, nor dictates whether the government can compel a witness to testify. A vagueness encompasses the statute, and this vagueness is noted in Padilla ex rel.
Newman v. Bush. 9 In Padilla, the court dealt with the Defense
Department's treatment of Jose Padilla, a United States citizen,
after his arrest on May 8, 2002, in Chicago, as a material witness
88. 18 U.S.C.A. § 3144 (2000). There are two terms that the government
uses to label and justify detainments: material witness and enemy combatant.
According to 18 U.S.C.A. § 3144:
[i]f it appears from an affidavit filed by a party that the testimony of a
person is material in a criminal proceeding, and if it is shown that it
may become impracticable to secure the presence of the person by
subpoena, a judicial officer may order the arrest of the person and
treat the person in accordance with the provisions of section 3142 of
this title. No material witness may be detained because of inability to
comply with any condition of release if the testimony of such witness
can adequately be secured by deposition, and if further detention is
not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of
Criminal Procedure.
Id. For the purposes of this Note, a "material witness" can be a citizen or noncitizen who is detained by a court order because the person is believed to have
information relevant to either a grand jury probe or an upcoming trial or someone who might fail to respond to a subpoena. Id. An "unlawful combatant"
includes a person detained by the Defense Department without charges, hearing, or a trial on the theory he or she is a soldier fighting against the United
States without a uniform and with the intent of committing hostile acts. See Ex
parte Quirin, 317 U.S. 1, 15 (1942) (finding that an unlawful enemy combatant
may be tried by military tribunal).
89. 233 F. Supp. 2d 564 (S.D.N.Y. 2002).
2004]
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
625
pursuant to 18 U.S.C. § 3144.9o The arresting officers from the
U.S. Department of Justice utilized the label of "material witness"
in order to "enforce a subpoena to secure Padilla's testimony
91
before a grand jury" in the Southern District of New York.
After Mr. Padilla's arrest in Chicago, he was moved to New
York to the custody of the Justice Department at the Metropolitan Correctional Center.9 2 Padilla appeared before the United
States District Court for the Southern District of New York, represented by court-appointed attorney Donna Newman, on May 22,
93
2002, in order to vacate the warrant. Then, on June 9, 2002,
the government "notified the court ex parte that it was withdraw94
ing the subpoena" of Mr. Padilla. After the court vacated the
warrant, President Bush designated Padilla as an "enemy combatant," and detained Padilla without communication with his lawyer or with anyone else. Since the Padilla case reflects how the
United States government may neglect the rights of American
upon
citizens, the probability that the Government is infringing
95
guaranteed.
practically
is
noncitizens
of
rights
the
III.
PUBLIC POLICY FITNESS: THE NEED FOR UNITED
STATES
COURTS TO IMPOSE SUBSTANTIVE LIMITS ON
DETAINMENTS AND DEPORTATIONS
Although the post-9/11 world necessitates heightened
national security, this need does not give Congress or the Executive the power or the moral authority to violate the rights of a
vulnerable group of persons living in the United States. A nonci-
tizen "who comes into the United States . . .illegally, who con-
ducts a terrorist operation killing thousands of innocent
Americans-men, women, and children-is not a lawful combatant ....
They don't deserve the same guarantees and safeguards
that would be used for an American citizen going through the
90. Id. at 568.
91. Id. at 568-69. In particular, Mr. Padilla's arresting agent, Joseph
Ennis (a special FBI agent) declared that "Padilla appeared to have knowledge
of facts relevant to a grand jury investigation into the September 11 [terrorist]
attacks .... and [appeared] to be committed and involved in planning further
attacks." Id. at 571.
92. Id. at 571.
93. Id.
94. Id.
95. See United States v. Awadallah, 349 F.3d 42 (2d Cir. 2003); Ctr. for
Nat'l Sec. Studies v. U.S. Dep't ofJustice, 217 F. Supp. 2d 58 (D.D.C. 2002). But
see In re the Application of the United States for a Material Witness Warrant, 213
F. Supp. 2d 287 (S.D.N.Y. 2002). See also infra Section IV (discussing possible
solutions to this problem).
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normal judicial process."9 6 Yet, what about the noncitizens who
do not commit or are not associated with a heinous terrorist
attack? The undesirable and unintended consequences of
neglecting to recognize noncitizens' rights increases the possibility of treating noncitizens more like criminals than immigrants.
Congress used its blinders on September 14, 2001, when
Representative C.W. Young introduced the 2001 Emergency Supplemental Appropriations Act for Recovery from and Response
to Terrorist Attacks on the United States97 that bestowed President Bush and Attorney General John Ashcroft with their initial
powers for extensive use of executive orders and regulations concerning the Department of Justice and the INS (now the USCIS
and BTS). One of the primary issues flowing from this legislation as well as the USA PATRIOT Act concerns the government's
use of the immigration system's power to detain "persons of
interest."9 " By charging noncitizens with immigration violations
instead of using the criminal justice system, the government
96. Elisabeth Bumiller & Steven Lee Myers, Senior Administration Officials
Defend Military Tribunalsfor Terrorist Suspects, N.Y. TIMES, Nov. 15, 2001, at B6
(quoting Vice President Dick Cheney). See also Detention, Treatment, and Trial
of Certain Non-citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov.
16, 2001) (Military Order of Nov. 13, 2001 issued by President Bush).
97. Upon enactment, the bill was officially titled: Making emergency supplemental appropriations for fiscal year 2001 for additional disaster assistance,
for anti-terrorism initiatives, and for assistance in the recovery from the tragedy
that occurred on September 11, 2001, and for other purposes. H.R. 2888,
107th Cong. (2001) (enacted as Pub. L. No. 107-38, 115 Stat. 220 (2001)). This
bill enacts the following:
[E]mergency supplemental appropriations for fiscal year 2001,
namely... for emergency expenses to respond to the terrorist attacks
on the United States on September 11, 2001, to provide assistance to
the victims, and to deal with other consequences of the attacks. Makes
$40 billion available to the Executive Office of the President and
Funds Appropriated to the President for the Emergency Response
Fund for such expenses, including for the costs of: (1) providing Federal, State, and local preparedness for mitigating and responding to
the attacks; (2) providing support to counter, investigate, or prosecute
domestic or international terrorism; (3) providing increased transportation security; (4) repairing damaged public facilities and transportation systems; and (5) supporting national security.
The Library of Congress, Bill Summary & Status for the 107th Congress, at
http://thomas. loc.gov/cgi-bin/bdquery/z?d107: HR02888: @@@L&summ2=
M& (last visited Feb. 20, 2004) (on file with the Notre Dame Journal of Law,
Ethics & Public Policy). See also U.S. Dep't of State, Countering Terrorism, at
http://www.state.gov/s/ct/c4291.htm (last visited Feb. 20, 2004) (on file with
the Notre Dame Journal of Law, Ethics & Public Policy).
98. One of the primary issues flowing from this legislation as well as the
USA Patriot Act concerns the government's use of the immigration system's
power to detain a noncitizen who might have committed an immigration viola-
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HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
627
avoids the protections afforded in the criminal justice system,
such as probable cause for arrest, the right to be brought before
a judge within forty-eight hours of arrest, and the right to courtappointed counsel. Noncitizens detained for post-9/11 inquiries
are "special interest" cases, and thus their cases bypass the safeguards given to people under a criminal investigation.
The draconian 1996 legislation, coupled with the USA
PATRIOT Act, the pervasive anti-immigrant sentiment, and the
lack of reviewable guarantees in the detainment and deportation
process, illustrate the neglectful nature of the United States'
treatment of noncitizens as well as the need to protect the noncitizens' dignity. Following the statutory analysis thus far of the
increase in the crime-related grounds leading to deportation,
there are three central remaining issues that create an especially
hazardous environment for immigrants: (1) racial discrimination
and ethnic profiling; (2) lack of procedural and substantive
rights with the intermingling of the immigration and criminal
justice systems; and (3) the conditions of detainment-i.e.,
secrecy, incommunicado, and lack of judicial scrutiny.
A. Ethnic Profiling, Nativism, and Racism's Influence On
Immigration Law
Ethnic profiling has always presented a problem in the
United States, especially when anti-immigrant sentiments are
high.99 Ethnic profiling is the most dangerous when that profiling is coupled with the power of the federal government and
entry-level bureaucrats to exercise control over the statuses and
detainments of noncitizens. After September 11, Americans and
the federal government appear to approve or at least acquiesce
to the racial profiling occurring. It seems that the great majority
of Americans will racially profile Arab males and noncitizens in
the pursuit of national security and safety of U.S. citizens. Perhaps the end result of protecting U.S. citizens demands some
form of racial profiling as a necessary yet distasteful means? Yet,
this distasteful means of trying to protect U.S. society will not
prove successful because the identity of the terrorist enemy will
continue to change. Additionally, by permitting racial profiling
to be an acceptable practice, noncitizens will be treated more
like criminals and the rights of every U.S. citizen will subsequently decrease. In order to contain the possible abuses to
tion, but who the law enforcement agencies are interested in questioning about
the possibility of this noncitizen having ties to terrorist organizations or activity.
99. For example, the federal government during World War II detained
Japanese Americans in the United States under the guise of national security.
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noncitizens and citizens alike in the United States, USCIS, BTS,
and local criminal justice agents must be educated about the
foreseeable spill-over effect that racial profiling has on all immigrants. The actions of the respective agents and agencies
involved with the security and immigration system of the United
States must also be reviewed.
Our nation is not known for our compassion and openmindedness in the realm of immigration law and policy; rather,
the United States has a "well-documented history of racism and
nativism in U.S. immigration law and policy.' 'iO° While nativism
is a "subcategory of xenophobia" that results in a fear of an internal minority due to its foreign connections, nativism also views
the minority's members as marked enemies of an American culture."'i Over the course of the United States' history, "society
consistently has viewed new waves of immigrants as racially differ10 2
ent outsiders."
The federal government is taking advantage of the pervasiveness of today's nativism and racism in the U.S. in order to detain
noncitizens under the pretext of national security, without much
scrutiny or opposition. Racial profiling is a reality of the "war" on
terrorism in the United States and abroad.i0 3 Civil rights organizations like the ACLU accuse the Departments of Justice and
Homeland Security of targeting Muslims, Arabs, and South Asian
immigrants. Neither of the Departments ofJustice or Homeland
Security seem to deny directing their investigations toward spe-
100. Kevin R. Johnson, The End of "Civil Rights" As We Know It?: Immigration and Civil Rights in the New Millennium, 49 UCLA L. REV. 1481, 1485
(2002)
(citing JOHN HIGHA", STRANGERS IN THE LAND: PATTERNS OF AMERICAN
NATInISM, 1860-1925 (2d ed. 1988)). See generallyJOHN HiGHAM, STRANGERS
IN THE
LAND: PATTERNS OF AMERICAN NATIVISM, 1860-1925 (2d ed. 1988).
101.
Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition
187, and the Structure of the EqualProtection Doctrine,42 UCLA L. REv. 1425,
1428-
29 (1995).
102. Johnson, supra note 100, at 1485. "Racial concerns have arisen with
regularity in debates over the U.S. immigration laws." Id. at 1486. See generally,
George A. Martinez, The Legal Construction of Race: Mexican-Americans and
Whiteness, 2 HARv. LATINO L. REv. 321 (1997).
103. Racial profiling could be seen as a violation of the rights and liberties of those being racially profiled. There are additional problems with
racial
profiling: namely, its actual effectiveness. At any time, the face of the "terrorist"
could change. Instead of looking "Muslim" or "Arab," the face could change
to
Egyptian, Morrocan, or Caucasian. How effective is racially profiling?
Yet, on
the other side, how effective is a random checking of passengers at the
airport
when the security is making an elderly Polish woman take off her shoes
for
examination?
2004]
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
629
cific groups.'1 4 Although similarly-situated non-Muslims and
non-Arabs who might have committed the same immigration violations are not being detained, the possible spill-over effect to an
increasing number of noncitizens is a probable and unethical
consequence.
In the months following the September 11 attacks, over
1,200 non-U.S. nationals were taken into custody; most of these
individuals were men of Arab or South Asian origin.105 On
November 9, 2001, the Department of Justice announced an initiative to conduct voluntary interviews of more than 5,000 young
men from countries suspected of harboring terrorists who had
entered the United States on temporary visas in the past two
years.1 ° 6 Then on January 8, 2002, the Department of Justice
announced a prioritization of the apprehension and removal
from the U.S. of 4,000 to 6,000 men from particular countries of
origin. 1° 7 On November 6, 2002, the "Registration of Certain
Nonimmigrant Aliens from Designated Countries" was
announced, requiring special registration of male visitors to the
Included in these
United States from specified countries.'
and Syria; 10 9 later
Sudan,
Libya,
named countries were Iraq, Iran,
the Department of Justice added Afghanistan, Algeria, Bahrain,
Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia,
Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia,
10
Bangladesh, Egypt, Indonesia, Jordan, and Kuwait to the list.
104. See generally Rachel Elbaum, Caught in the Dragnet, Arab Americans
Swept Up in Post Sept. 11 Maelstrom, MSNBC, May 23, 2002, at http://
7 17 23
.asp (on file with Notre Dame Journal of Law,
www.msnbc.com/news/ 5
Ethics & Public Policy). The ACLU filed suit on January 19, 2003 for Samar
Kaub, a Muslim woman, who was strip-searched at O'Hare Airport even though
she never set off the metal detectors. Id.
105.
AMNESTY
INTERNATIONAL,
AMNESTY
INTERNATIONAL'S
CONCERNS
REGARDING POST SEPTEMBER 11 DETENTIONS IN THE USA 1 (Mar. 2002), at
http: //web. amnesty. org / aidoc / aidoc_pdf. nsf/Index / AMR510442002ENG
LISH/$File/AMR5104402.pdf (last visited Feb. 7, 2004) (on file with the Notre
Dame Journal of Law, Ethics & Public Policy).
106. Jodi Wilgoren, A Nation Challenged: The Interviews; Prosecutors Begin
Effort to Interview 5,000, but Basic Questions Remain, N.Y. TIMES, Nov. 15, 2001, at
B7.
107. Neil A. Lewis, A Nation Challenged: Immigration Control; I.N.S. to Focus
on Muslims Who Evade Deportation,N.Y. TIMEs, Jan. 9, 2002, at A12. This number
of men is out of the more than 300,000 "absconders" who have exhausted their
administrative and judicial appeal rights to their final deportation order. Id.
108. Registration of Certain Nonimmigrant Aliens from Designated
Countries, 67 Fed. Reg. 67,766 (Nov. 6, 2002).
109. Id.
110. See 68 Fed. Reg. 8046 (Feb. 19, 2003); 68 Fed. Reg. 2363 (Jan. 16,
2003); 68 Fed. Reg. 2366 (Jan. 16, 2003); 67 Fed. Reg. 77,642 (Dec. 18, 2002);
67 Fed. Reg. 70,526 (Nov. 22, 2002).
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The ACLU argues that the Department of Justice's guidelines "went far beyond any legitimate quest for factual information," because "[o]fficials were instructed to inquire into political
beliefs of the targeted young men, and to ask them to report on
the political beliefs of their families and friends.""' This technique is a discriminatory dragnet that is neither an effective nor
a permissible substitute for the constitutional requirement of
individualized suspicion for wrongdoing.
During this time of heightened fear, the United States' priority of national security seems justified. But the priority of
national security should not be allowed to create a rightsdeprived environment. Yet, in reality, this fear propels United
States citizens to justify suspending the civil rights of people, particularly those of immigrants, in order to detain individuals that
look "suspect." This practice of detaining those who look suspect, namely, those who belong to a racial or ethnic class not
dominant in the United States, will not stop with those of Arab
descent. Rather, this racist practice will most likely lead to discrimination and inappropriate race-based practices to those individuals most susceptible and vulnerable, namely the
12
noncitizens. 1
In addition to the racial profiling occurring in the highest of
levels of the federal government and the Department of Homeland Security, the prejudices that follow in tandem with racial
profiling encourage entry-level bureaucrats and local authorities
to discriminate against noncitizens as well. For example, in
charging and indicting a noncitizen, the agents in the criminal
justice system might be harsher and less concerned about the
possible deportability of a noncitizen through a certain charge,
indictment, conviction, or plea when certain prejudices are present. These prejudices could lead to increased ethnic profiling
and discrimination against noncitizens. The increased
probability of entry-level agents in the criminal justice system
using discriminatory practices may occur at many stages in the
detainment and deportation process-i.e., from the local authorities that arrest and charge the noncitizen, to the prosecutor, to
the defense counsel andjudges. These actors in the criminaljustice system have "tremendous power to control (or substantially
affect) the outcome of a future immigration proceeding when
111. Testimony of American Civil Liberties Union President Nadine
Strossen on National Security and the Constitution, Jan. 24, 2002, at http://
www.aclu.org/news/NewsPrint.cfm?ID=9304&c=1 11 (last visited Jan. 28, 2003)
(on file with Notre Dame Journal of Law, Ethics & Public Policy).
112. Note that the vulnerability of immigrants is heightened by the obvious lack of voting rights.
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HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
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the criminal defendant is an alien."'1 3 These actors working
within the criminal justice system must be aware of the way in
which a decision made during the course of criminal proceedings directly affects immigration matters and the "obligation to
exercise the power fairly and responsibly" during this time of
heightened14 national security and widespread ethnic and racial
profiling. 1
B.
The CriminalJustice System and the Immigration
Regulatory System
Because the immigration system is administrative and not
criminal, noncitizens are not afforded the protections associated
with the criminal justice system. The immigration system serves
the domestic war on terrorism well, as far as efficiency is concerned, because of the lack of due process rights. Because of the
punishment-like nature of immigration detainments and deportations, and lack of due process, the officials and agents of the
immigration and criminal systems should be aware of the consequences of their decisions and discretion. Analysis of the last ten
years of laws affecting noncitizens shows that because of the
increased possibility of detainment and deportation, a need
exists for safeguards and a heightened awareness by the agents in
the immigration and criminal systems of the consequences of
one another's actions.
Since an immigrant's status and possible deportation is inextricably linked to the criminal justice system's decision about how
to treat the immigrant defendant, the criminal justice system and
the regulatory immigration system should have an awareness of
the other's policies. In recent years, Congress "has ...begun to
tie immigration and criminal justice processes more closely
together, gradually rendering inappropriate categorical restrictions on the scope of professional roles in the criminal justice
arena."' 5 Agents in both the immigration and criminal systems
113. Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings and
the Alien Defendant, 50 ARK.L. REv. 269, 300 (1997). Pilcher gives an interesting
analysis of the "critical decisions" for a noncitizen defendant:
Just as sentencing guidelines limit the discretion of judges and
improve predictability of outcomes for the prosecutor, so do the categorical immigration outcomes prescribed by the INA limit the discretion of immigration judges and improve the predictability of
immigration outcomes for criminal justice decisionmakers.
Id.
114. Id. Back in 1997, Pilcher understood the role of lower bureaucrats
in the criminal justice system and how their actions affect the immigrant's possible deportation after a commission of a crime.
115. Id. at 272.
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should realize an ethical and moral duty to pay attention to and
advise regarding the consequences of their actions in other
spheres. Arguably, since the protections afforded to the criminal
defendant are not applicable in immigration cases, the agents in
the criminal justice system have no responsibility to consider the
implications of their actions upon an immigrant's possible
deportation.' 1 6 However, the reality of deportation is that it creates harsh consequences for a noncitizen and has an appearance
similar to punishment.' 17 In particular, in the last ten years,
Congress has sought to increase substantively and procedurally
the ways in which an immigrant can be deported and detained.
Substantively, Congress, through the USA PATRIOT Act and
preceding immigration legislation, increased the number and
substance of crimes that change a non-citizen's immigration status and that could lead to deportation. Indeed, in the USA
PATRIOT Act, Congress added that by mere association a noncitizen could be guilty of an aggravated felony, a crime of moral
turpitude, a controlled
substance offense, a crime of violence, or
l s
a terrorist act.
Prior to September 11, an immigrant could not be found
deportable by mere association, 9 but Section 411 of the USA
PATRIOT Act makes an immigrant guilty by association. Under
the USA PATRIOT Act, the government need not prove a nexus
between the immigrant's conduct and the terrorist activity, and
the broad definition of "engaged in terrorist activity" includes
any use or threat to use a weapon. 20 Moreover, the noncitizen
can be deported for any connection between the noncitizen and
the "terrorist organization," which could include any two persons
who commit a crime of violence. 2 ' If a noncitizen has any
116. See id. at 300. Even proponents see the distinction between the two
systems. Pilcher argues: "I do not mean to suggest the criminal system should
ignore immigration law; indeed, this article's central premise is that it is appropriate for the criminal justice system to operate with full awareness of immigration-related consequences." Id. at 302.
117. See Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) (holding that the "order of deportation is not punishment for a crime"); Mahler v.
Eby, 264 U.S. 32, 39 (1924) (reaffirming the "well-settled" aspect of immigration law that deportation is not a punishment, even though it "may be burdensome and severe for the alien").
118. See, e.g., USA PATRIOT Act of 2001 § 411(a), 8 U.S.C.A.
§ 1182(a) (3) (B) (West Supp. 2003).
119. 8 U.S.C. § 1227(a) (4) (B) (2000) (requiring engagement); 8 U.S.C.
§ 1182(a) (3) (B) (iii) (2000) (defining engagement).
120. USA PATRIOT Act, § 411(a) (F) (iv), 8 U.S.C.A. § 1182(a)(3)(B)(iii)
(V), (VI); § 1182(a) (3) (B)(vi) (West Supp. 2003).
121. Id. at § 411(a) (G) (vi).
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HOW CAN THE UNFIED STATES RECTFY ITS POST-9/11 STANCE?
633
then the
involvement or association with said criminal activity,
1 22
noncitizen is detainable and probably deportable.
Procedurally, Congress has initiated "abbreviated hearing
procedures, eliminating immigration judges' discretion and abolishing the rights to judicial review of immigration proceedings. '"123 Furthermore, "in 1996, Congress authorized judges in
federal criminal cases to issue deportation orders concurrently
1 24
with, and in some cases as part of the judgment of sentence."
While Congress is pushing for an integration of immigrationrelated matters into the criminal justice system, Congress will not
allow any part of the protections of the criminal justice system to
filter into the immigration law sector.
Notwithstanding the 1996 legislation's procedural morass,
the USA PATRIOT Act diminished the procedural rights of
immigrants. In particular, the INA is amended by section 412 of
the USA PATRIOT Act, authorizing the mandatory detentions1of
25
suspected terrorists without the assistance of judicial review.
Alternatively, the USA PATRIOT Act states:
122. See supra Section III for a discussion of crimes of moral turpitude,
aggravated felonies, crimes of violence, and controlled substance offenses.
123. Pilcher, supra note 113, at 273.
124. Id. The article discusses three "mechanisms" of interest that interweave criminal and immigration law procedurally. Id. First, "judicial removal"
allows a court in a federal criminal case to "hold its own mini-deportation hearing at the time of sentencing and issue a 'judicial order of removal'" pursuant
to the request of a federal prosecutor. Id. (quoting the AEDPA-created INA
§ 238(c), 8 U.S.C. § 1228(c) (Supp. 1997) (formerly INA § 242A, 8 U.S.C.
§ 1252a(d)). Second, Congress created the "stipulated judicial order of deportation" where the "parties to a federal criminal proceeding 'may stipulate to the
entry of ajudicial order of deportation from the United States as a condition of
the plea agreement or as a condition of probation or supervised release, or
both' in both felony and misdemeanor cases." Id. (citing INA § 238(c) (5), 8
U.S.C. § 1228(c) (5) (Supp. 1997)). Finally, the "final means by which criminal
and immigration procedures have become more closely intertwined is through
a statute authorizing federal judges to provide for deportation as a condition of
a criminal defendant's supervised release." Id. at 274 (subsequently citing to 18
U.S.C. § 3583(d) (1994)).
125. USA PATRIOT Act of 2001 § 412, 8 U.S.C. § 1226a(a)(1), (2);
(b) (1) (West Supp. 2003).
The Attorney General shall take into custody any alien who is certified
under paragraph (3).
... Except as provided in paragraphs (5) and (6), the Attorney General shall maintain custody of such an alien until the alien is removed
from the United States. Except as provided in paragraph (6), such
custody shall be maintained irrespective of any relief from removal for
which the alien may be eligible, or any relief from removal granted the
alien, until the Attorney General determines that the alien is no
longer an alien who may be certified under paragraph (3). If the
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The Attorney General shall place an alien detained under
paragraph (1) in removal proceedings, or shall charge the
alien with a criminal offense, not later than seven days
after the commencement of such detention. If the
requirement of the preceding sentence is not satisfied, the
1 26
Attorney General shall release the alien.
The USA PATRIOT Act requires procedural safeguards for
detainees both substantively and in duration, such as placement
in removal proceedings or charge of a criminal offense no later
than seven days after the beginning of the detention. The U.S.
government may utilize the immigration system instead of relying upon the relevant procedures of the USA PATRIOT Act to
detain individuals because of the immigration system's lack of
procedural safeguards. In addition, by utilizing the immigration
system to detain people, Department ofJustice officials avoid terrorism law, such as the terrorist removal court Congress created
in 1996 and the terrorist certification for detention in the USA
PATRIOT Act that requires a set procedure, a heightened standard of accountability, and time constraints.
In addition to the procedures mentioned above, the Department of Justice has advocated the enforcement of immigration
law by local law enforcement agents instead of immigration representatives. 12' The circumstances where the police are able to
act as immigration enforcement agents exist during immigration
emergencies caused by a mass influx of aliens or other circumstances. The possibilities for human rights violations and abuse
alien is finally determined not to be removable, detention pursuant to
this subsection shall terminate.
judicial review of any action or decision relating to this section
J..
(including judicial review of the merits of a determination made
under subsection (a) (3) or (a) (6)) is available exclusively in habeas
corpus proceedings consistent with this subsection. Except as provided in the preceding sentence, no court shall have jurisdiction to
review, by habeas corpus petition or otherwise, any such action or
decision.
Id.
126. USA PATRIOT Act § 412, 8 U.S.C. § 1226a(a)(5).
127. On April 10, 2002, the Department ofJustice's Office of Legal Counsel issued a legal opinion stating that local law enforcement officers have
"inherent" powers to enforce immigration laws. On July 24, 2002, the Department of Justice expanded the police powers of state and local governments by
allowing their police, under INS (now BTS) direction, to act as immigration
enforcement agents. See National Immigration Forum, Backgrounder: Immigration Law Enforcement by State and Local Police, at http://www.immigrationforum.
org/currentissues/articles/BackgrounderSLPolice.pdf (Oct. 2003)
with Notre Dame Journal of Law, Ethics & Public Policy).
(on file
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HOW CAN THE UNITED STATES RECTIFY IS POST-9/11 STANCE?
635
by local law enforcement officials in dealing with immigration
violations are high because of the lack of knowledge about the
States coupled with the curimmigration system in the United
28
rent anti-immigrant sentiment.1
Given the lessened standard of mere association to a crime,
and the close relation between the criminal justice system and
immigration law, criminal justice system agents' professional
responsibilities must conform to the immigration consequences
that could result from a certain plea or conviction. In a noncitizen's criminal case, a defense attorney must provide each client
with competent and zealous representation. 2 9 That is, the attorney should not only be an expert in the practice of criminal law,
but he or she must also understand the repercussions of the
criminal justice system's outcomes upon the noncitizen in the
area of deportation. With the intermingling of the criminal justice system and the immigration regulatory system, the U.S. government should counsel and educate criminal justice agents
regarding possible deportation consequences for the noncitizen.
Ethically, prosecutors, in particular, have a responsibility "to
see that justice is fairly done."' 3 ° The prosecutor's immense discretion in the range of possible charges presents a choice in
which "[i]f the gravity of the offense and the community's need
for retribution and deterrence can be ...
accounted for by alter-
native theories of the case, the obligation to pursue individualized justice requires serious consideration of those
alternatives." 3 ' Besides prosecutorial discretion, if the criminal
justice system increases the awareness of a noncitizen's status and
possible deportation after the completion of the sentence, then,
at the very least, when the equitable scale weighs in favor of keeping a family together or some other extreme hardship, perhaps
128. James M. Lindsay & Audrey Singer, Local Police Should Not Do an
LN.S. Job, N.Y. TIMES, May 8, 2002, at A31 (objecting to the delegation of immigration enforcement to police authorities based on the increased likelihood of
racial profiling). The draconian 1996 immigration legislation explicitly permitted the delegation of immigration enforcement authority through cooperation
agreements with local authorities. 8 U.S.C. § 1357(g) (2000).
129. See MODEL RuLEs OF PROF. CONDUCT R. 1.1-1.3 (2003).
130. Pilcher, supra note 113, at 331 (quoting the ABA STANDARDS FOR
Standard 36.1 cmt. (1993)).
131. Id. at 332. In order to illustrate her point, Pilcher presents the scenario in which a prosecutor has the choice between charging an immigrant
with "breaking and entering with intent to commit larceny," which is a crime of
moral turpitude, or "trespass," which is not. She argues that "[i]f the trespass
conviction can result in punishment that serves goals of incapacitation, retribution, and/or deterrence, the interests ofjustice demand no more." Id.
CRIMINALJUSTICE-PROSECUTION FUNCTION AND DEFENSE FUNCTION,
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justice can be done through consideration of alternative treatments, detainments, or charges of the immigrant.
C.
Conditions of the Detainments of Noncitizens
A major concern in the detainment of noncitizens is how
they are being held: namely, with lack of judicial review rights,
incommunicado status, and limited or no legal counsel. Noncitizens detained on immigration charges may be held in many different facilities and without communication with family
members, both of which lead to possible problems in the treatment of the detainees due to lack of transparency and accountability. "3' 2 Although Attorney General Ashcroft assured the United
States public and international sector that detainees were being
promptly charged within forty-eight hours or within the USAPATRIOT-Act-required seven-day grace period to charge or
release the detainee, there have been numerous incidents of
longer detentions without charges. 133
Because of the 1996 legislation and the USA PATRIOT Act,
the Attorney General, the former head of the immigration system, has exercised great discretion over the detainments and
removals of noncitizens. Specifically, as amended by the 1996
132. See, e.g., Somini Sengupta, PakistaniMan Dies in LN.S. Custody, N.Y.
Oct. 25, 2001, at B1O (reporting that one detainee, Mohammed Rafiq
Butt, age fifty-five, died of heart failure while in the custody of the Hudson
County jail in Kearny, New Jersey); see generally U.S. Immigration and Customs
Enforcement, Detention Operations Manual, at http://www.ice.gov/graphics/
about/organization/guidance.htm (last visited Feb. 20, 2004) (on file with the
Notre Dame Journal of Law, Ethics & Public Policy) ("The Detention Operations Manual . . . contains a complete set of Detention Standards . . . [and]
establishes uniform policies and procedures for the safe, secure and humane
treatment of foreign nationals in INS custody."). Furthermore:
Implementation of the Detention Standards is mandatory for all INS
Service Processing Centers (SPCs), Contract Detention Facilities
(CDFs), and state and local government facilities (IGSA facilities) that
house INS detainees for more than 72 hours. Implementation of the
Detention Standards will take place in two phases over a period of 24
months. The first phase will cover SPCs, CDFs and the nine largest
IGSA facilities. During the second phase, implementation will extend
to all other IGSA facilities. All phase-two facilities will have completed
implementation, and be in compliance with all INS Detention Standards, by December 31, 2002.
Id.
133. See, e.g., Dan Eggen, Delays Cited in ChargingDetainees; With Legal Lattitude, INS Sometimes Took Weeks, WASH. PosT, Jan. 15, 2002, at Al (describing how
after the INS arrested two Pakistani nationals on October 2, 2001, they were not
charged with overstaying theirs visas until 49 days later).
TIMES,
2004]
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/11 STANCE?
637
legislation, 3 4 the INA granted the Attorney General the discretion to indefinitely detain deportable, criminal aliens who were
not removable. 135 The Attorney General's power and unfettered
discretion in the detainments and removals of noncitizens created an atmosphere of little accountability. Then after September 11, the Department of Justice issued an emergency rule
allowing the period of detention before filing of charges against
noncitizens to be stretched from twenty-four to forty-eight hours
or "an additional reasonable period of time" in the event of an
36
Although
emergency or other extraordinary circumstance.1
is not
hours
forty-eight
to
the extension of time from twenty-four
addi"an
that
state
does
a drastic emergency measure, the clause
somedetain
to
used
be
could
tional reasonable period of time"
one. The vagueness in this clause allows the FBI and local
officers to exercise their own discretion in what constitutes a reasonable length of time and an extraordinary or emergency situation.' 37 The vagueness of the emergency rule, coupled with the
unfettered discretion and the 1996 legislation, create an environment with no accountability.
In addition to the 1996 legislation and emergency rule, the
power and unregulated discretion over the detainments and
removals of the Attorney General grew with the enactment of the
USA PATRIOT Act. The USA PATRIOT Act's Section 412 is the
immigration mandatory detention provision. Section 412 authorizes the Attorney General to certify a noncitizen when the Attorney General has "reasonable grounds to believe" that the
noncitizen has been described in various anti-terrorism provi3 8
The Attorney General may
sions of the Immigration Act.'
detain the noncitizen without a hearing and without a showing
that the person poses a threat to national security or a flight risk.
Yet, the charges (criminal or immigration-related) against a
39
noncitizen are supposed to be filed within seven days.'
However, in reality, the Attorney General has not used this
detention provision in the "special interest" cases presumably
134. See AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996); Omnibus
Consolidated Appropriations Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009
(1996).
135. In Zadvydas v. Davis, the Court takes exception to the full deference
typically given to the INS and Congress over immigration matters. 533 U.S.
678, 701 (2001) (citing a period of six months as the constitutionally maximum
duration of detention for noncitizens with pending removal orders).
136. 8 C.F.R. § 287.3(d) (2003).
137. Id.
138. USA PATRIOT Act §412(a), INA §236A(a)(3), 8 U.S.C.A.
§ 1226a(a) (3) (West Supp. 2003).
139. USA PATRIOT Act § 412, 8 U.S.C.A. § 1226a(a) (5).
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NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY
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because of the requirement that the charges need to be filed
within seven days. Instead the Attorney General has used the
immigration custody rule, expanded through the executive fiat,
to arrest noncitizens without bringing charges for weeks. Since
the BTS and USCIS regulations and procedures offer fewer procedural rights and are afforded great deference by the judicial
system, the United States' immigration system is a convenient
device to detain noncitizens for indefinite periods of time.
Because of the secrecy behind the detentions, accountability
is a problem. 140 In general, the Department of Homeland Security's detention practices, under the auspices of terrorism and
national security, have included secret and incommunicado
detentions, closed hearings, and a lack of access to attorneys and
family members.'4 1 One particular and intriguing example of a
U.S. federal judiciary adjudication of an immigration issue dealing with detainment, the First Amendment, and deportability
hearings of suspected criminal immigrants is Detroit Free Press v.
Ashcroft. 142 This case deals with the detention of immigrants in
relation to the 9/11 terrorist attacks.
The case began when Attorney General Ashcroft ordered
the Chief Immigration Judge Michael Creppy to not list on the
public docket the immigration cases related to terrorist
attacks.' 4 3 Chief Immigration Judge Michael Creppy's memo not
only closed hearings and files of special interest FBI terror probe
to public, press, and politicians, but the "Creppy Memo" made
the detainments of noncitizens secret even from the noncitizens'
140. See Tom Brune, Of 'Special Interest' Immigration System Being Used to
Detain Some Suspects, NEWSDAY, Sept. 16, 2002, at A8. The article reported that
Shakir Ali Baloch, a forty-year-old man and a Pakistani-born Canadian citizen,
was detained by federal agents nine days after the September 11 attacks. Baloch
thought that he was picked up for illegally living in a Queens Boulevard apartment, and he assumed he would be deported in days. Yet, "the FBI labeled him
a 'special interest' case in its terror probe, and he spent the next seven months
in jail." In a high-security, solitary confinement Brooklyn jail, Baloch allegedly
received "once-a-month phone access and no lawyer" and law enforcement officials searched his apartment, bank accounts, and questioned him numerous
times. Id.
141. See generally ABA Attacks Secret Jailings,Demands Facts on Detainees, ST.
PETERSBURG TIMES, Aug. 14, 2002, at A9, available at http://www.sptimes.com/
20 0 2
/08/1 4 /newspf/Worldandnationa/ABA attackssecret ja.shtml (last visited Feb. 6, 2004); U.S. Lawyers Group Opposes Secret Detentions, Islam Online,
Aug. 15, 2002, at http://www.islamonline.net/bEnglish/News/2002-08/15/
article0l.shtml (last visited on Feb. 6, 2004) (on file with the Notre Dame Journal of Law, Ethics & Public Policy).
142. 303 F.3d 681 (6th Cir. 2002).
143. See id. at 705.
2004]
HOW CAN THE UNITED STATES RECTIFY ITS POST9/11 STANCE?
639
families. 1 44 This restriction included neither confirming or
denying whether a case was actually on the docket. In particular,
the memo stated that Attorney General Ashcroft has "implemented additional security procedures" for detainee cases of the
1 45
Thus, Creppy
FBI terror probe of "special interest" cases.
states that in "closing the special interest deportation hearings,
the Government's stated purpose is to avoid disclosing potenongoing
tially sensitive information to those who may pose an
146
its interests.
security threat to the United States and
However, when the "Creppy Memo" entered the judicial system, the Honorable Nancy G. Edmunds of the United States District Court of the Eastern District of Michigan held that the First
Amendment conferred a public right of access to deportation
hearings.' 4 7 The reviewing judge, Sixth Circuit Judge Keith,
affirmed the injunction that opened the proceedings because the
closure to the public and press violated First Amendment rights.
4
Judge Keith stated:' '
A true democracy is one that operates on faith-faith that
government officials are forthcoming and honest, and
faith that informed citizens will arrive at logical conclusions. Without question, the events of September 11, 2001,
left an indelible mark on our nation, but we as a people
are united in the wake of the destruction to demonstrate to
the world that we are a country deeply committed to preserving the rights and freedoms guaranteed by our
149
democracy.
This example of detainment and closed trials with the
facade of immigration violations shows the extent to which the
federal government can manipulate the dignity afforded to
immigrants and the necessity of the judiciary to be a "check" on
the federal government's actions. In the end, before Detroit Free
144. Cyrus D. Mehta, One Year After 9/11: Will the Courts Protect the Rights of
Noncitizens?, IMMIGRATION DAILY, at http://www.ilw.com/lawyers/articles/
2002,0912-mehta.shtm (last visited on Feb. 11, 2004) (on file with the Notre
Dame Journal of Law, Ethics & Public Policy).
145. Memorandum from Michael Creppy, Chief Immigration Judge, to
All Immigration Judges and Court Administrators, Cases Requiring Special Procedures (Sept. 21, 2001), available at http://news.findlaw.com/hdocs/docs/
aclu/creppy092101memo.pdf (last visited on Feb. 6, 2004) (on file with the
Notre Dame Journal of Law, Ethics & Public Policy).
146. North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 203 (3d
Cir. 2002).
147. Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D. Mich.
2002), aff'd, 303 F.3d 681 (6th Cir. 2002).
148. See Detroit Free Press, 303 F.3d at 705.
149. Id. at 711.
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Press v. Ashcroft was decided, over 700 noncitizens had already
been tried in secret proceedings.1 5 ° Since the federal government exhibits an extreme willingness to forego the rights that
immigrants had in our country before September 11, 2001, not
only is the judiciary's scrutiny essential, but this extreme willingness to forego the rights of noncitizens may lead entry-level
bureaucrats and local authorities to treat immigrants with less
dignity, compassion, or constitutional firmness.
In addition to the "Creppy Memo," Attorney General Ashcroft issued a new statement of policy encouraging federal agencies to resist the Freedom of Information Act (FOIA) 5' 1 requests
and supersede Attorney General Janet Reno's 1993 statement
promoting disclosure of government information unless it was
"reasonably foreseeable that disclosure would be harmful."1 5' 2
The Department ofJustice has instructed its agencies to withhold
information whenever one could argue that there is a "sound
legal basis." ' In particular, 8 C.F.R. sections 236 and 241 concern the release of information regarding INS detainees in nonfederal facilities."5 4 Specifically, the rules state:
No person, including any state or local government entity
or any privately operated detention facility, that houses,
maintains, provides services to, or otherwise holds any
detainee on behalf of the Service ... shall disclose or otherwise permit to be made public the name of, or other
information relating to, such detainee.' 5 5
Federal agencies' restriction of FOIA requests not only
decrease accountability but increase secrecy and possibility for
abuse.
In addition to the secrecy surrounding the detainments,
once detained, the detainee does not have a guarantee of attorney-client privilege. The Bureau of Prisons promulgated regula150.
151.
See Cole, supra note 33, at 962.
FOIA, 5 U.S.C. § 552 (2000).
152. Press Release, U.S. Dep't of Justice, Government Adopts New Standards for Openness (Oct. 4, 1993), available at http://www.fas.org/sgp/
clinton/reno.html (last visited on Feb. 6, 2004) (on file with the Notre Dame
Journal of Law, Ethics & Public Policy).
153. Office of Information and Privacy, U.S. Dep't of Justice, New Attorney General FOIA Memoranda Issued (Oct. 15, 2001), at http://
www.usdoj.gov/oip/foiapost/2001foiapostl9.htm (last visited on Feb. 6, 2004)
(on file with the Notre Dame Journal of Law, Ethics & Public Policy).
154. Several organizations sued the government for its failure to reveal
the names of detained noncitizens under a Freedom of Information Act
request. See Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918
(2003).
155.
8 C.F.R. §§ 236.6, 241.15.
2004]
HOW CAN THE UNITED STATES RECTIFY UiS POST-9/1l STANCE?
641
tions that permit the Department of Justice to monitor
confidential attorney-client conversations when the Attorney
General feels there is "reasonable suspicion" that a federal prisoner "may" use communications with attorneys or agents to "fur5 6 This means that the
ther or facilitate acts of terrorism."'
Attorney General could find reasonable suspicion in cases concerning "persons of interest" (noncitizens) as well as "material
witnesses" (citizens and noncitizens, alike). The significance of
the regulations is that the Attorney General's discretion of monitoring conversations between attorneys and clients applies to persons in custody: pretrial detainees, material witnesses, and
individuals suspected of immigration violations (including ones
not accused of any crime).
Why do we need this new regulation when the DOJ had the
157
authority under United States v. Harrelson to obtain a warrant
from a judge based on probable cause that the attorney is facilitating a crime? One argument could be made that the finding of
probable cause is too strict a standard in terrorist activities and
with threats to national security. The Department of Justice
defends the new regulation by pointing to the requirement of
notice to the inmate that his or her conversations may be monitored. On the other side, why does the Department of Justice
have the ability to forego the neutral role of a judge and the
long-standing requirement of probable cause? Also, what harm
may come to the attorney-client privilege and the rights associated with the Sixth Amendment? Some argue that the procedural safeguards protect the detainees' Sixth Amendment and
attorney-client rights, including: (1) the "written advance notification that their communication will be monitored"; (2) the
"'firewall' between the team monitoring the communications
and the outside world, including persons involved with any ongoing prosecution of the client"; (3) "absent imminent violence or
terrorism, the government would have to obtain court approval
before any information from monitored communications is used
for any purpose, including for investigative purposes"; and (4)
"no privileged information would be retained by the monitoring
team . .
.
only information that is not privileged may be
retained."15 ' Although the Office of Inspector General of the
U.S. Department of Justice investigates complaints into the lack
66 Fed. Reg. 55,062 (Oct. 31, 2001); 28 C.F.R. § 501.3(d).
754 F.2d 1153, 1168-69 (5th Cir. 1985).
Viet D. Dinh, Freedom and Security After September 11, 25 HARV. J.L. &
PUB. POL'Y 399, 404-05 (2002). The bias in Dinh's argument is obvious once a
reader reads that Dinh is an Assistant Attorney General at the United States
Department of Justice in the Office of Legal Policy.
156.
157.
158.
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of access to attorneys and various other civil rights violations, 159
the undesirable result of intrusions into the attorney-client privilege could be the complete distrust of the attorney-client privilege by detainees as well as extreme erosion of the privilege, in
general.
The judicial branch is the main check on the status of noncitizens in the immigration system controlled by Homeland Security and influenced by the FBI. Yet, when one speaks of
immigration lawmaking, the courts sustain various egregious
forms of discrimination and deprivation of process under the
guise of Congress' plenary power. In "constitutional discourse,"
the plenary power has "long been relegated to a sort of constitutional hall of shame."16 ° Possible relief to the current harsh
immigration and detention environment for noncitizens came
during the Supreme Court's 2000 term in the Zadvydas v.
Davis 6 ' and INS v. St. Cyr'6 2 cases that both pointed to the Court
possibly moving away from Congress' plenary power in immigra63
tion law. 1
In particular, Zadvydas v. Davis dealt with LPRs who had
been ordered removed and who were held in custody by the INS
(now BTS) beyond the ninety-day removal period. Under section 241 (a) (6) of the INA-added to the code in 1996-the
159. See U.S. DEP'T OFJUSTICE OFFICE OF THE INSPECTOR GENERAL, REPORT
TO CONGRESS ON IMPLEMENTATION OF SECTION 1001 OF THE USA
PATRIOT ACT
(Jan. 27, 2004) available at http://www.usdoj.gov/oig/special/O4Ola/final.pdf
(last viewed Feb. 23, 2004) (on file with the Notre Dame Journal of Law, Ethics
& Public Policy).
160. PeterJ. Spiro, Explainingthe End of PlenaryPower, 16 GEo. IMMIGR. LJ.
339, 340 (2002) (referencing GabrielJ. Chin, Segregation's Last Stronghold: Race
Discrimination and the Constitutional Law of Immigrations, 46 UCLA L. Rv. 1
(1998).
161.
533 U.S. 678, 695 (2001) (citing with approval INS v. Chadha, 462
U.S. 919, 941-42 (1983) (limiting Congress' plenary power)). For a persuasive
article discussing the impact of Zadvydas v. Davis, see T. Alexander Aleinikoff,
Detaining Plenary Power: The Meaning and Impact of Zadvydas v. Davis, 16 GEo.
IMMIGR. LJ. 365 (2002); but see Nguyen v. INS, 533 U.S. 53 (2001). This case
dealt with an LPR, Tuan Ahn Nguyen, who had been born out of wedlock in
Vietnam, but his United States citizen father, Joseph Boulais, appealed his
removal order which was based on two crimes of moral turpitude and one
crime of an aggravated felony. Id. at 57. The removal process began because
Nguyen pleaded guilty in a Texas state court to two counts of sexual assault on a
child. Justice Kennedy, writing for the court, stated that the statute making it
more arduous for children born out of wedlock to claim citizenship through
the United States citizen parent did not violate the equal protection guarantee
of the Fifth Amendment. Id.
162. 533 U.S. 289 (2001).
163. Aleinikoff, supra note 161; Spiro, supra note 160, at 340; Taylor,
supra note 59.
20041
HOW CAN THE UNIT.D STATIS RECTIFY fS POST-9/1I1 STANCE?
643
Attorney General may indefinitely detain some non-citizens sub6
ject to a final order of removal from the United States." For
example, if removal cannot be effected within ninety days after
the entry of a final order of removal, those who have been convicted of criminal offenses or those the Attorney General has
determined to be a "risk to the community or unlikely to comply
65 When the govwith the order of removal" may be held longer.
ernment argued that the "goal of detention was to ensure
removal of the non-citizen, not simply to lock up dangerous per' The Court also found it hard to
sons," the Court was skeptical. 66
believe that "detention [was] an important element of INS
removal practices" when the government had "no reasonable
prospect of removing a non-citizen."' Justice Breyer, writing
for a 5-4 majority, wrote that Congress' immigration power "is
subject to important constitutional limits"
68
-i.e.,
"Congress
must choose a 'constitutionally permissible means of implementing' that power"'69-and that the INA's post removal-period
detention contains an implicit reasonableness limitation (six
months),170
Another example of a case possibly limiting Congress' plenary power is INS v. St. Cyr, which dealt with aliens who had pled
guilty to deportable crimes prior to the enactment of the AEDPA
and IIRIRA. 171 The defendant, Enrico St. Cyr, was a citizen of
Haiti who was admitted to the United States as an LPR in
1986.172 Ten years after his admission, St. Cyr pled guilty in a
a controlled subConnecticut state court to a charge 1of
73 selling
stance, which made him deportable.
Under pre-AEDPA law applicable at the time of his conviction, St. Cyr would have been eligible for a waiver of depor0
164. INA § 241(a)(6), 8 U.S.C. §1231(a)(6)(200 ). The statute reads:
An alien ordered removed who is . . .removable under § 237(a) (2)
[criminal offense], or § 237(a)(4) [security and foreign policy
grounds], or who has been determined by the Attorney General to be
a risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period [i.e., ninety days
following entry of removal] and, if released, shall be subject to the
terms of supervision of paragraph (3).
Id.
165.
See INA § 241 (a) (6), 8 U.S.C. § 1231(a)(6) (2000).
166.
Aleinikoff, supra note 161, at 370.
167.
Id.
168.
Zadvydas v. Davis, 533 U.S. 678, 695 (2001).
169.
170.
171.
172.
173.
Id. (citing INS v. Chadha, 462 U.S. 919, 941-42 (1983)).
Id. at 680.
INS v. St. Cyr, 533 U.S. 289, 293 (2001).
Id.
Id.
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tation at the discretion of the Attorney General. However,
removal proceedings against him were not commenced
until April 10, 1997, after both AEDPA and IIRIRA became
effective, and, as the Attorney General interpreted those
statutes, he no longer has discretion to grant such a
waiver.' 74
That is, the "pre-AEDPA and pre-IIRIRA [character] of the
law.., gave the Attorney General discretion to waive deportation
in certain cases."1 75 While both the AEDPA and IIRIRA
decreased the applicable relief for immigrants, IIRIRA repealed
the Attorney General's section 212(c) discretionary waiver. 176
On certiorari, the Court addressed two questions: (1) procedurally, what is the effect of AEDPA and IIRIRA on the availability of habeas corpus jurisdiction under 28 U.S.C. § 2241 and (2)
substantively, what is the impact of AEDPA and IIRIRA on "conduct that occurred before their enactment and on the availability
of discretionary relief."' 177 The Court held that AEDPA and
IIRIRA did not deprive the Court of jurisdiction to review an
immigrant's habeas petition. 7
The Court also held that the
provisions of AEDPA and IIRIRA repealing the discretionary
relief by the Attorney General did not apply retroactively to St.
Cyr.' 7 9 The Court held in a 5-4 decision that legal immigrants
facing deportation because of felony convictions could raise pure
"questions of law" in habeas corpus proceedings brought
in federal courts under 28 U.S.C. section 2241."80 This holding is critical to noncitizens, because this means that district courts retain
the "general habeas corpus jurisdiction to review the legality of
deportation orders."''
Lastly, as a result of INS v. St. Cyr, the
Executive Office of Immigration Review (EOIR) published a proposed rule on August 13, 2002, amending INS and EOIR regulations to establish procedures implementing INS v. St. Cyr for
LPRs with certain criminal convictions, arising from plea agreements reached before a verdict at trial, to apply for relief from
deportation or removal pursuant to former INA section 212(c).
Without invoking the traditional plenary power reasoning,
the Supreme Court in Zadvydas and St. Cyr suggested that the
Court was "backing away from the heightened deference that the
174.
175.
176.
177.
Id.
Id.
INA § 212(c), 8 U.S.C. § 1182(c) (repealed 1996).
St. Cyr, 533 U.S. at 292-93.
178.
Id. at 289.
179.
180.
181.
Id.
Id.
Taylor, supra note 59, at 275.
2004]
HOW CAN THE UNITED STATES RECTIFY ITS POST-9/1J STANCE?
645
judiciary has long afforded to the political branches' regulation
of immigration." 182 However, even though both Supreme Court
cases point to the limitation of Congress' plenary power in the
realm of immigration law, a post-9/11 Court will likely grant full
discretion to Congress to implement more restrictive regulations
concerning immigrants and increase the deportations of immigrants with minor infractions. The USA PATRIOT Act "dramatically increased the power of the executive branch to detain and
remove noncitizens, authorizing federal action on vague, openImmigrants who were
ended grounds and secret evidence." '
84
charged with criminal involvement in the 9/11 terrorist acts'
were detained by the Justice Department on immigration
charges. The number of undesirable consequences that can
result from the vague, open-ended and secret nature surrounding the detentions of noncitizens is limitless. At least four unintended consequences are practically guaranteed: (1) a decrease
in the idea that individuals within the borders of the United
States should be treated with respect, dignity, and at least a modicum of constitutional firmness; (2) an increase in the distrust
and distain of the American government not only by noncitizens,
but by the international community, as well; (3) a sweeping erosion in the rights of citizens along with the rights of LPRs and
other noncitizens; and (4) a depth of abuse in the immigration
system that will lead to violations of individuals-citizens and
noncitizens alike-at the hands of entry-level officers who work
within the system without adequate checks.
CONCLUSION
In addition to the offensiveness of the ethnic profiling and
discrimination against noncitizens, the lack of procedural safeguards and increased substantive crime-related deportations
diminishes the opportunities and rights of immigrants. The
intermingling of the criminal and immigration systems, and the
approval by the federal government and Congress of the use of
secret trials, secret evidence, and indefinite detention of noncitizens suspected of terrorist activity, affects all noncitizens, an
extremely vulnerable group. When the United States restricts
noncitizens' rights for the security of the nation, it heightens the
possibility of violations of the rights of noncitizens as well as citi182. Id. at 271.
183. See, Aleinikoff, supra note 161, at 366.
184. See generally Detroit Free Press v. Ashcroft, 195 F. Supp. 2d 937 (E.D.
Mich. 2002), affd, 303 F.3d 681 (6th Cir. 2002).
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zens. 8 5 Through an increased awareness of immigration law by
the local authorities in the criminal justice system, stricter judicial review of Congress' plenary power and immigration officers'
decisions concerning detainments and deportations, and an ethical focus on issues concerning national security, perhaps the
rights and dignity of noncitizens will improve.
185.
See Cole, supra note 33, at 953.